The attachment of a mortgage debt under Order XXI, Rule 46 of the Code of Civil Procedure operates on both the debt and the security, affecting the right to possession without the need for a separate attachment under Rule 51.

1. This appeal raises an important question as regards the validity of an attachment effected under Order XXI, Rule 46 of the Code of Civil Procedure. The 1st defendant held an anomalous mortgage and under the terms of the mortgage deed, was in possession of the property. The plaintiff obtained a decree against him, attached his interest in the mortgage under Rule 46, brought it to sale and purchased it in Court-auction. The plaintiff as the purchaser of the 1st defendants mortgage interest, has brought this suit for possession and for mesne profits. As regards his claim to possession, no question arises, as the property has since the suit been delivered to the plaintiff. The lower Appellate Court has passed a decree for mesne profits not only against the 1st defendant, who does not appeal, but also against defendants Nos. 2 to 6, with whose liability alone we are now concerned. I have said that the plaintiff himself became the purchaser at the Court sale; he obtained the sale-certificate on July 21, 1926, and on the next day, i. e. on the 28th the 1st defendant leased the property to the 2nd. On the May 5, 1927, the present suit was commenced and the property was delivered to the plaintiff on May 9, 1928. The mesne profits claimed are for the period between the date of the lease and the date of the delivery.

2. Mr. Ramaswami Ayyangar for the appellant (the 2nd defendant) contends that, though by reason of the attachment under Rule 46 the mortgage debt was validly attached, there was, so far as the right to possession was concerned, no legal attachment. It must now be taken as settled, that the procedure to be followed as regards the attachment of a mortgage debt is that prescribed by Rule 46. The question arose whether a mortgage debt was a debt not secured by a negotiable instrument" within the meaning of that provision. The contention was put forward that a mortgage was an interest in immovable property and that Rule 46 would not, therefore, apply; but that contention was rejected and the Courts held that a debt secured by a mortgage was none the less a debt for the purpose of the rule in question. The earlier cases that arose, such as Karimunnissa v. Phul Chand 15 A 134, Tarvadi Bholanath v. Bai Kashi 26 B 305 : 4 Bom. L.R. 18 Nataraja Iyer v. The South Indian Bank of Tinnevelly 13 Ind. Cas. 91 : 37 M 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 22 M.L.J. 105 were in respect of simple mortgage debts; the argument that a mortgage debt should be treated as immovable property was repelled, as I have said, in those cases and the judgments in Tarvadi Bholanath v. Bai Kashi 26 B 305 : 4 Bom. L.R. 18, contain a lucid statement of the reasons for the view the learned Judges adopted. In those cases the question was left open, whether or not a mortgage debt under a possessory mortgage could be attached under this provision; that question has since been answered in the affirmative in Chullile Peetikayil Nammad v. Othenam Nambiar 26 Ind. CAS. 50 : 27 M.L.J. 239 and Ramaswami Moopan v. Srinivasa Iyyangar 28 Ind. Cas. 284 : 39 M 389 : 28 M.L.J. 338. The effect of these decisions is shortly this: the attachment of a mortgage debt operates not only on the debt but also on the security, which fastens itself to the debt; the security, therefore, follows the debt. In other words, even granting that the interest of the mortgagee is immovable property, that interest arises from the debt and is ancillary to it, therefore, there is no further necessity to attach the security as immovable property, when the debt has already been attached. In Manilal Ranchod v. Moti Bhar Hema Bhar 10 Ind. Cas 812 : 35 B 288 : 13 Bom. L.R. 233, in the case of a usufructuary mortgage, a different view seems to have been taken, but that decision has been distinguished by our Court in two cases: Ramaswami Moopan v. Srinivasa Iyengar 28 Ind. Cas. 284 : 39 M 389 : 28 M.L.J. 338 and Nataraja Iyer v. The South Indian Bank of Tinnevelly 13 Ind. Cas. 91 : 37 M 51 : 10